Thursday, June 27, 2013

By Richard HorowitzOn November 10, 1975, the UN General Assembly passed Resolution 3376 creating the “UN Committee on the Exercise of the Inalienable Rights of the Palestinian People,” and on May 20, 2013 it held its 352nd meeting, for which Saeb Erekat, Palestine’s chief negotiator with Israel, delivered the keynote address.Erekat explained that the Palestinians will not resume negotiations with Israel, not because it has preconditions, but because Israel has to first satisfy its legal obligations.“We have no conditions to resume negotiations. When we say Israel must stop settlement activity, this is not a condition, this is an Israeli obligation, emanating Article 31 the final clauses of the Interim Agreement 1995 and the Roadmap which specified stopping settlement activities including natural growth as an obligation on Israel.When we speak about releasing prisoners, especially those who were arrested before the end of May 1994, we also stipulate Article 3 to the Sharm el Sheik Agreement of 1999; that’s an agreement signed with Israel.And when we say two-state solution of 1967 the Roadmap specified that the objective of the peace process is to end the occupation that began in 1967. So Israel in its blame-game and finger pointing that we put conditions. Ladies and gentlemen, these are not conditions, these are Israeli obligations.”A review of the documents Erekat cites shows no such Israeli obligations. Article 31 of the Interim Agreement of 1995 signed by both parties contains no requirement for Israel to cease settlement activity. This interim agreement mentions settlements only in the context of issues that will be determined through “permanent status negotiations,” along, for example, with Jerusalem, borders, and refugees (Article 31(5). These issues, including settlements, are again listed in Article 17(1)(a) as “issues that will be negotiated in the permanent status negotiations.”Erekat ignores paragraph six of Article 31, “neither party shall be deemed, by virtue of having entered into this Agreement, to have renounced or waived any of its existing rights, claims, or positions,” and paragraph seven, “neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations,” as the Palestinians did by presenting the issue of its statehood before the Security Council and General Assembly.Erekat also relies on the 2003 Roadmap as proof of Israel’s obligation to “freeze[s] all settlement activity (including natural growth of settlements),” as the document states. The Roadmap, however, is neither an agreement nor in any way a legally binding document. It is a recommendation proposed by the Quartet to the parties bearing no legal authority, similar to UN General Assembly resolutions, which are non-binding. For example, General Assembly Resolution 181 of November 29, 1947, a non-binding recommendation, “call[ed] upon the inhabitants of Palestine to take such steps as may be necessary on their part to put this plan into effect,” meaning “independent Arab and Jewish States … shall come into existence in Palestine,” soon after the expiration of the Mandate for Palestine in May 1948, created by the League of Nations in 1922. This resolution was accepted only by Palestine’s Jewish community, which declared Israel’s independence in May 1948, not its Arab community.The second Israeli obligation Erekat claims is that Article 3 of the Sharm el-Sheikh Memorandum (Erekat referred to this document as an agreement), also signed by both parties, requires Israel to release all Palestinian prisoners by stating that the article applies to “especially those who were arrested before the end of 1994.” Article 3 however, states that “Israel shall release Palestinian and other prisoners who committed their offences prior to September 13, 1993, and were arrested prior to May 4, 1994,” meaning the article refers only and not especially to prisoners in this category. Erekat ignored the implication of Israeli and Palestinian negotiations, pursuant to Article 3 of the Memorandum, which stated, “the two Sides shall establish a joint committee that shall follow up on matters related to the release of Palestinian prisoners.” The joint committee met numerous times to negotiate the prisoner release issue, with Erekat playing a leading role.To prove Israel’s third obligation, to return to the 1967 line in order to create the two-state solution, Erekat again cited the Roadmap, which does state, “the settlement will resolve the Israel-Palestinian conflict, and end the occupation that began in 1967.” As stated the Roadmap is a recommendation by the Quartet to the parties and not a binding legal document. As such, the Roadmap cannot create obligations on either party; rather, this language provides historical perspective. Moreover, that the issue of borders is included in the Interim Agreement of 1995 as a matter for final status negotiations negates the argument that a return to the 1967 line is an Israeli obligation. In fact, the Security Council Resolution 242 of November 22, 1967 submitted by UK ambassador, Lord Caradon, spoke of the “withdrawal of Israel armed forces from territories occupied in the recent conflict,” and intentionally omitted the word "the" preceding the word terroritories, indicating the resolution did not have the intention of withdrawal from all territories.The implication of Erekat’s claim that a return to the 1967 line is an Israeli legal obligation and not a Palestinian condition to resume negotiations becomes evident when he stated, “we have also entertained that if Israel accepts two states on 1967, and Palestine becomes independent we are willing to entertain the idea of minor modifications.” Erekat in effect is saying that only after Palestine achieves statehood on the 1967 line will it entertain minor modifications on its sovereign land.The parties agreed in the Interim Agreement of 1995 that settlements, refugees, and borders are to be left for final status negotiations, which will not occur if the Palestinians consider these issues unsatisfied Israeli legal obligations.

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*****Richard Horowitz is a New York attorney practicing corporate and international law and is a former IDF officer. He has lectured in 18 countries on terrorism and related issues.